Volume 41 | Issue 1
Article 2
2015
From Commitment to Compliance: Enforceability
of Remedial Orders of African Human Rights
Bodies
Roger-Claude Liwanga
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Recommended Citation
Roger-Claude Liwanga, From Commitment to Compliance: Enforceability of Remedial Orders of African Human Rights Bodies, 41 Brook. J. Int'l L. (2015).
COMPLIANCE: ENFORCEABILITY OF
REMEDIAL ORDERS OF AFRICAN
HUMAN RIGHTS BODIES
Roger-Claude Liwanga*
INTRODUCTION... 100
I. SYNOPSIS OFAFRICANHUMANRIGHTSBODIES... 104
A. Historical Background... 104
B. Principal African Human Rights Bodies... 105
1. African Commission of Human Rights ... 105
a. Jurisdiction and Standing ... 106
b. Admissibility... 108
2. ACtHPR... 115
a. Powers and Jurisdictions... 116
b. Standing Rights ... 117
c. Admissibility... 118
d. Relationship Between the ACtHPR and the African Commission ... 118
3. ACJHR ... 119
a. Jurisdictions of the ACJHR... 122
b. Applicable Laws and Standing ... 125
c. Admissibility... 126 * Fellow at Harvard University's FXB Center for Health and Human Rights; Lecturer of Law at Suffolk University Law School; SJD candidate (Suffolk University); LL.M (University of Cape Town); and Licence en Droit (Université Protestante au Congo). This article is an adaptation of a paper presented as part of a directed study at Suffolk Law School in 2015. The au-thor is thankful to Chris Gibson and Patrick Shin for their helpful comments on an earlier draft.
d. Relationship Between the ACJHR, ACtHPR, and African Commission... 130
II. (NON)COMPLIANCE WITHHUMANRIGHTSCOURTDECISIONS INAFRICA... 131
A. Understanding the Concept of Compliance... 131 B. Challenges for International Decision Enforcement... 135
1. Politicization of the Postadjudicative Phase and Lack of Sanctions against Defaulting Parties... 135 2. Lack of Participation by National Judicial Institutions in the Enforcement of International Judgments... 140 3. “Judicial Sovereignty” of the Domestic Courts vis-à-vis International Tribunals? ... 146
III. RECOMMENDATIONS FOR THEENFORCEMENT OF
INTERNATIONALJUDGMENTS... 148
A. Legal Reforms to Empower the Domestic Courts to Enforce International Judgments ... 148 B. Increasing the Power of NHRIs in Monitoring the
Enforcement of International Judgments... 151
CONCLUSION... 151
INTRODUCTION
any African governments have ratified numerous inter-national and regional human rights instruments, in-cluding the International Covenant on Civil and Political Rights,1 the African Charter on Human and Peoples’ Rights
(“African Charter”),2 the Protocol on the African Court on
Hu-man and Peoples’ Rights,3 the Protocol on the Statute of the
1. International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].
2. African Charter on Human and Peoples’ Rights, June 27, 1981, 21 I.L.M. 58 [hereinafter African Charter].
3. Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court of Human and Peoples’ Rights, June 9, 1998, http://www.achpr.org/instruments/court-establishment/ [hereinafter Protocol to the African Charter].
African Court of Justice and Human Rights,4 and the Rome
Statute on the International Criminal Court (ICC),5 among
others. In ratifying these treaties, the States (countries) not only commit themselves to promoting the realization and re-spect for the rights provided for by these instruments,6but also
to complying with the decisions of the judicial human rights bodies empowered to adjudicate human rights violations. In the case of human rights infringement, judicial human rights bod-ies, such as the African Court on Human and Peoples’ Rights (ACtHPR) or the African Commission of Human and Peoples’ Rights (“African Commission”), have several options in decid-ing how to address the wrongdodecid-ing committed by a State party. These bodies can order a State-violator to cease the violations of human rights, prosecute those involved in the violations, re-pair the damage caused to victims, and/or take other measures reinforcing human rights.7 However, with no coercive power to
4. Protocol on the Statute of the African Court of Justice and Human Rights, July 1, 2008, 48 I.L.M. 317 [hereinafter Protocol on the Statute of the ACJHR]. In May 2012, the African countries’ representatives adopted their own protocol. African Union, Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, at 8, Exp/Min/IV/Rev.7 (May 15, 2012) [hereinafter Draft Protocol Amending ACJHR Protocol], https://africlaw.files.wordpress.com/2012/05/au-final-court-protocol-as-adopted-by-the-ministers-17-may.pdf. For the purpose of this ar-ticle, the terms the “Protocol on the Statute of the ACJHR (for the old version of the ACJHR Statute)” and the “Draft Protocol Amending the ACJHR Proto-col (for the amended version incorporating the provisions dealing with the ACJHR’s International Criminal Law Section)” will be used interchangeably.
5. Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 3 [hereinafter Rome Statute].
6. ICCPR, supra note 1, art. 1, para. 3.
7. See Democratic Republic of Congo v Burundi, Rwanda and Uganda, Communication 227/99, African Commission on Human and Peoples’ Rights [Afr. Comm’n H.P.R.], Holding (May 2003), http://www.equalrightstrust.org/ertdocumentbank/DRC%20v%20Burundi,%2 0Rwanda%20and%20Uganda.pdf; Interights, ASADHO and Madam O. Disu v. Democratic Republic of Congo, Communication 274/03 and 282/03, African Commission on Human and Peoples’ Rights [Afr. Comm’n H.P.R.], ¶ 89 (Nov.
5, 2013),
http://www.achpr.org/files/sessions/54th/comunications/274.03_et_282.03_/ac hpr54_decis__274_and_282_03_drc_2013_eng.pdf; Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, Communication 379/09, African Commission on Human and Peoples’ Rights [Afr. Comm’n H.P.R.], ¶ 142 (Mar. 12, 2014),
http://www.achpr.org/files/sessions/14th-enforce their decisions, the ACtHPR and the African Commis-sion, as well as international courts, rely on the good faith of the States to implement their remedial orders.8Despite States’
commitments to respect human rights and comply with courts’ decisions, scholars examining the issue of State compliance with human rights bodies’ decisions conclude that only a few judgments rendered are actually implemented by the con-cerned States.9 Most decisions are either partially enforced or
not enforced at all. This state of affairs leaves countless human
eo/comunications/379.09/achpr14eos_decis_379_09_sudan_eng.pdf; Egyptian Initiative for Personal Rights and Interights v Arab Republic of Egypt, Com-munication 334/06, African Commission on Human and Peoples’ Rights [Afr.
Comm’n H.P.R.], ¶ 233 (Mar. 3, 2011),
http://www.achpr.org/files/sessions/9th-eo/comunications/334.06_/achpreos9_334_06_eng.pdf.
8. Gerald L. Neuman, Bi-Level Remedies for Human Rights Violations, 55 HARV. INT’LL. J. 323, 325 (2014).
9. Déborah Forst noted that the execution of judgments from the ECtHR has been unsatisfactory. And as of
31 December 2011, among the more than 10,000 cases pending be-fore the Committee of Ministers for the supervision of the execution 2,278 were leading cases, i.e. cases which have been identified as re-vealing a new systemic/general problem in a respondent state, which had been pending for more than five years. Moreover, 1354 of the 1696 new cases which became final between 1 January and 31 De-cember 2011, were repetitive ones.
Déborah Forst, The Execution of Judgments of the European Court: Limits
and Ways Ahead, 7 VIENNAJ. INT’LCONST. L., Feb. 2013, at 1, available at
https://www.icl-
jour-nal.com/download/f1527ce403500a9ec58b8269a9a91471/ICL_Thesis_Vol_7_3 _13.pdf (last visited Oct. 20, 2015). Research conducted by Frans Viljoen and Lirette Louw on State compliance with the recommendations of the African Commission revealed that “only 14 percent of State parties comply fully and in timely fashion with the decisions of the African Commission on Human and Peoples’ Rights.” See Frans Viljoen & Lirette Louw, State Compliance
with the Recommendations of the African Commission on Human and Peo-ples’ Rights: 1994–2004, 101 AM. J. INT’LL. 1, 5 (2007). Statistics from studies
done on States’ compliance with human rights bodies decisions reveal that only 6 percent of the IACtHR’s judgments are fully complied with by con-cerned States, 83 percent are partially complied with, and 11 percent are not complied with. See Darren Hawkins & Wade Jacoby, Partial Compliance A
Comparison of The European and Inter-American Courts of Human Rights, 6
rights victims without justice and reparations for prejudices endured.
This article explores some of the practical and legal reasons preventing the enforcement of the decisions of human rights courts in Africa. It posits that African States’ noncompliance or partial compliance with human rights courts’ decisions is linked to numerous variables. These variables include the polit-icization of the postadjudicative phase, coupled with the lack of sanctions against defaulting States; the nonexistence of a judi-cial enforcement mechanism at regional and domestic levels; the lack of participation of domestic courts in the enforcement of international courts’ judgments; and the misuse of the notion of sovereignty on judicial issues. This article also recommends actions to increase the likelihood of enforceability of the human rights courts’ remedial orders in Africa. Ultimately, this article suggests certain legislative reforms at both the regional and national level, to help create a special judicial enforcement re-gime10through which the domestic courts and National Human
Rights Institutions (“NHRIs”) will play a pivotal role in enforc-ing judgments of international and regional human rights judi-cial bodies. However, this article recognizes that this proposi-tion, which would allow human rights victims and beneficiaries of an international judgment to seek enforcement of the verdict in their favor before the domestic court of the offending State, may not be a perfect solution. This issue stems from the practi-cal challenges in the administration of justice in some African countries. For example, most judgments rendered in the Demo-cratic Republic of Congo (DRC) by local tribunals on local dis-putes are not implemented by the concerned parties. How can these local tribunals enforce international judgments when even their own decisions are not actually implemented?
This article is structured as follows: Part I will examine the principal African human rights bodies (such as the African Commission, the ACtHR, and the African Court of Justice and Human Rights (ACJHR)), and explore the historical back-ground of their establishments, powers, jurisdictions, and the
locus standi of these bodies. Part II will analyze the concept of 10. Richard F. Oppong, Enforcing Judgments of the SADC Tribunal in the
Domestic Courts of Member States, in MONITORINGREGIONALINTEGRATION IN
SOUTHERNAFRICAYEARBOOK115, 116 (Anton Bösl et al. eds., 2010)
compliance and the challenges for international decisions’ en-forcement. Part III proposes recommendations to increase the rate of enforcement of international judgments.
I. SYNOPSIS OFAFRICANHUMANRIGHTSBODIES
This Part will examine the historical background of the crea-tion of the African human rights bodies and their powers, ju-risdictions, and the locus standi of these bodies. This Part will also discuss the relationship between these judicial bodies that is governed by the principle of complementarity.
A. Historical Background
The African human rights system has gradually evolved since the adoption of the African Charter in 1981, which constitutes the “birth certificate” of African human rights bodies. To un-derstand the development of the African human rights system, it is important to first comprehend the philosophy that animat-ed the Organization of African Unity (OAU), which is consid-ered the “maternity” of all continental human rights instru-ments in Africa.
The OAU was established on May 25, 1963, when the repre-sentatives of thirty-two countries signed the OAU Charter. Over the years, twenty-one other countries gradually joined the OAU, culminating with South Africa, which became the fifty-third member on May 23, 1994.11 The main objective of the
OAU was to end the colonization and apartheid in the African continent; to promote unity among African States; to coordi-nate cooperation for development; to safeguard the sovereignty and territorial integrity of its members; and to promote inter-national cooperation within the framework of the United Na-tions.12 However, while addressing the issues of socioeconomic
rights, decolonization, and racial discrimination, the OAU Charter lacked explicit obligations for its members in regards
11. Fordham O’Wara, Bibliographical Pathfinder: African System for the
Protection and Promotion of Human Rights, U. MINN. HUM. RTS. LIBR. (2002),
https://www1.umn.edu/humanrts/bibliog/africanpathfinder.html.
12. African Human Rights System, INFO. PLATFORM HUMANRIGHTS.CH,
http://www.humanrights.ch/en/standards/other-regions-instruments/african-human-rights-s (last visited Apr. 12, 2015).
to the protection of civil and political rights.13 As a result,
nu-merous massive violations of human rights were completely ignored in Africa.14The omission of human rights was at least
partly tied to the OAU Charter’s sacrosanct principle of nonin-terference in the internal affairs of State members.15
Neverthe-less, the international movement generated by both the 1950 adoption of the European Convention on Human Rights (estab-lishing the European Court of Human Rights (ECtHR)) and the 1969 entry into force of the Inter-American Convention of Hu-man Rights (establishing the Inter-American Court of HuHu-man Rights (IACtHR)) resonated throughout the African continent: the establishment of a system protecting human rights in Afri-ca beAfri-came a necessity.16 It is in this context that the African
Charter and its 1998 Protocol were adopted to create judicial human rights bodies in Africa with the fundamental mission of mandating States to respect of the rights guaranteed by the African Charter.17
B. Principal African Human Rights Bodies
The following section will analyze the principal African hu-man rights bodies, including the African Commission of Hu-man Rights, the African Court of HuHu-man Rights, and the fu-ture ACJHR. It will particularly analyze the powers, jurisdic-tions, and locus standi of these bodies.
1. African Commission of Human Rights
Article 30 of the African Charter created the African Com-mission as a “quasi-judicial” body to monitor the implementa-tion of the African Charter’s rights. Article 30 stipulates that “An African Commission on Human and Peoples’ Rights, here-inafter called ‘the Commission,’ shall be established within the Organization of African Unity to promote human and peoples’
13. History of the African Charter, AFR. COMMISSION ONHUM. & PEOPLES’
RTS., http://www.achpr.org/instruments/achpr/history (last visited Apr. 12,
2015). 14. Id. 15. Id.
16. INT’L FED’N FORHUMANRIGHTS, THE AFRICANCOURT ONHUMAN AND
PEOPLE’S RIGHTS: TOWARDS THE AFRICAN COURT OF JUSTICE AND HUMAN
RIGHTS19–20 (2010) [hereinafter FIDH].
rights and ensure their protection in Africa.”18One may wonder
why the African Charter established a quasi-judicial body ra-ther than simply providing for the creation of a court. The
travaux preparatoires of the African Charter reveal that the
majority of the treaty drafters rejected the idea of establishing a Court to enhance the protection of human rights in order to comply with the African legal traditions for the political set-tlements of disputes.19In establishing the African Commission
as a quasi-judicial organ, the African Charter conferred the Af-rican Commission with a dual mandate of promoting and pro-tecting human rights in the African continent.20
a. Jurisdiction and Standing
The African Commission performs its promotional mandate by implementing several tasks, such as: collecting documents and conducting research on African problems in the field of human rights; organizing seminars, symposia, and conferences; disseminating information, encouraging national and local in-stitutions concerned with human rights, and making recom-mendations to governments; formulating and developing prin-ciples and rules relating to human rights to serve as the basis for the adoption of legislation by African governments; and co-operating with other African and international institutions working in the field of the promotion and protection of human rights.21 The African Commission’s promotional function also
includes gathering information on the situation of human rights within a State party’s territory, raising awareness of the African Charter, and improving the situation of human rights in Africa.22 This catalog of promoting activities requires a
sub-stantial budget in order for the African Commission to effi-ciently execute its duties. However, the African Commission has long experienced a limited operating budget—for example, its budget in 2007 was estimated at $1,000,000 USD and in 2009 at $3,600,000 USD; whereas the ECtHR's budget was
18. African Charter, supra note 2, art. 30. 19. FIDH, supra note 16, at 23.
20. Id. at 22.
21. African Charter, supra note 2, art. 45.
22. ORG. OF AFR. UNITY, INTERIM RULES OF PROCEDURE OF THE AFRICAN
COMMISSION ONHUMAN ANDPEOPLE’SRIGHTS, r. 74 para. 3 [hereinafter AFR.
about €56,000,000 (or $100,000,000 USD) in 2009.23 With
re-gards to its mandate of protecting human rights, the African Commission’s competencies consist of sending promotional and protection missions to States parties;24 receiving
communica-tions from States parties, nongovernmental organizacommunica-tions (NGOs), and individuals for violations of human rights commit-ted by a State party;25 adopting recommendations on the
hu-man rights situations in countries or on specific issues relating to human rights;26 sending urgent appeals to States parties;27
scrutinizing State reports on legislative or other measures tak-en to give effect to the rights guaranteed by the African Char-ter and making recommendations in this regard;28 and
inter-preting the provisions of the African Charter at the request of a State party, an institution of the African Union (AU), or an Af-rican NGO recognized by the AU.29From this description of the
protection mandate, it appears that the African Commission has a broad jurisdiction over human rights issues, including contentious and advisory jurisdictions. In addition, the African Commission’s jurisdiction applies only to States that have rati-fied the African Charter and its Protocol. Regarding the locus
standi, the African Commission can receive complaints from
States, NGOs, and individuals for violations of human rights committed only by a State party.30This means that the African
23. FIDH, supra note 16, at 23, 29.
24. AFR. COMM’NINTERIMRULES OFPROC., supra note 22, r. 24 para. 1.
25. African Charter, supra note 2, art. 47; see also Dawda Jawara v. The Gambia, Communication 147/95–149/96, African Commission on Human and People’s Rights [Afr. Comm’n H.P.R.] (May 11, 2000) [hereinafter Comm. 147/95–149/96],
http://www.achpr.org/files/sessions/27th/comunications/147.95-149.96/achpr27_147.95_149.96_eng.pdf. In this case, the African Commission received a complaint from an individual, who was the former Head of State of the Republic of The Gambia. The complainant alleged the military junta, who overthrew his government, violated his fundamental human rights. Id. paras. 1–10. In Ligue Camerounaise des Droits de l’Homme v. Cameroon, the African Commission received a complaint submitted by an NGO. Ligue Came-rounaise des Droits de l’Homme v. Cameroon, Communication 65/92, African Commission on Human and Peoples’ Rights [Afr. Comm’n H.P.R.] (Apr. 1997), http://www.chr.up.ac.za/images/files/publications/ahrlr/ahrlr_2000.pdf.
26. AFR. COMM’NINTERIMRULES OFPROC., supra note 22, rule 95.
27. Id. r. 23, para. 4.
28. African Charter, supra note 2, art. 62. 29. Id. art. 45, para. 3.
Commission cannot adjudicate human rights violations in cases committed by non-state actors or nonparty States. For exam-ple, an individual cannot approach the African Commission for the violation of human rights committed by another individual. Accordingly, the African Charter set up specific criteria in or-der for cases to be admitted to the African Commission.
b. Admissibility
The issue of admissibility of complaints before the African Commission is regulated by Rule 105 of the African Commis-sion Rules of Procedure,31 and Article 56 of the African
Char-ter.32 Indeed, Rule 105 of the Rules of Procedure specifically
deals with the process of admissibility and provides that once a complaint is lodged, the African Commission will request a complainant to present evidence and arguments on admissibil-ity within two months.33 The African Commission will then
transmit a copy of the complaint to the responding State and request it to submit its arguments and evidence within two months from the time of its notification.34 Upon receiving the
responding State’s submissions, the complainant may then comment on those submissions within a month.35
Article 56 of the African Charter sets up the criteria of ad-missibility and stipulates that complaints on human rights vio-lations can be admitted by the African Commission if the com-plaints:
1. Indicate the authors of the complaint even if the latter re-quests anonymity;
2. Are compatible with the Charter of the Organization of Af-rican Unity or with the present Charter;
3. Are not written in disparaging or insulting language di-rected against the State concerned and its institutions or to the Organization of African Unity;
4. Are not based exclusively on news discriminated through the mass media;
31. AFR. COMM’NINTERIMRULES OFPROC., supra note 22, r. 105.
32. African Charter, supra note 2, art. 56.
33. AFR. COMM’NINTERIMRULES OFPROC., supra note 22, r. 105.
34. Id. r. 105, para. 1. 35. Id. r. 105, para. 3.
5. Are sent after the intervention of exhaustive local reme-dies, if applicable, unless it is obvious that this procedure is unduly prolonged;
6. Are submitted within a reasonable period from the time lo-cal remedies were exercised or from the date the Commission is seized of the matter; and
7. Do not deal with cases that have been settled by the States involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of Af-rican Unity or the provisions of the present Charter.36
From the criteria listed above, it appears that there are seven conditions of admissibility for cases brought before the African Commission. In other words, a complaint would be declared inadmissible by the African Commission if it is: filed anony-mously, nonspecific about the rights violated, drafted in insult-ing language, not based on the truth of facts, filed before ex-hausting local remedies, filed at an unreasonable time, or pre-viously settled by other (quasi) judicial international bodies.37
All seven criteria must be concurrently met,38 and a
complain-ant’s failure to comply with any of the requirements will result in the rejection of his or her case.
In past years, the African Commission has dismissed numer-ous complaints for their noncompliance with the provisions of Article 56. Leading examples illustrating the implementation of the admissibility criteria include the case Dioumessi and
Others v. Guinea,39 in which the African Commission held a
complaint inadmissible because of anonymity. In this case, the African Commission implicitly concluded that an anonymous communication implies not only the absence of the complain-ant’s name, but also the lack or inaccuracy of contact infor-mation. Furthermore, the African Commission declared the complaint inadmissible because the complainant could not be
36. African Charter, supra note 2, art. 56.
37. EGYPTIAN INITIATIVE FOR PERSONAL RIGHTS ET AL., FILING A
COMMUNICATION BEFORE THEAFRICANCOMMISSION OF HUMAN ANDPEOPLES’
RIGHTS 9–17 (2013),
http://www.redress.org/downloads/publications/1307%20Manual%20to%20the %20African%20Commission.pdf.
38. Id.
39. Dioumessi and Others v. Guinea, Communication 70/92, African Commission on Human and Peoples’ Rights [Afr. Comm’n H.P.R.], ¶ 13 (Oct. 1995), http://www.chr.up.ac.za/images/files/publications/ahrlr/ahrlr_2000.pdf
reached at the provided address.40 The African Commission
upheld a similar position in the subsequent case of Joana v.
Madagascar.41 However, one may wonder what the African
Commission’s position would be if contact were reestablished with a complainant at a future date. In Riffaat Makkawi v.
Su-dan,42 the African Commission reopened and admitted a
com-plaint that it had initially declared inadmissible for anonymity, based on inaccurate contact information, when contact was reestablished with the complainant.43
Another criterion for rejection of complaints relates to the use of disparaging or insulting language directed against the con-cerned State and its governing institutions. The terms “dispar-aging” and “insulting” language are neither defined in the Afri-can Charter nor clarified by the AfriAfri-can Commission in its de-cisions. In Ligue Camerounaise des Droits de l’Homme v.
Cam-eroon,44 the African Commission declared the complaint
inad-missible for insulting language because it contained statements describing the Cameroonian government as a “regime of tor-tures” and called for the Cameroonian president to “respond to [the] crime against humanity” that was committed.45 However,
the African Commission did not explain with legal reasoning how calling for a perpetrator of a crime against humanity to be held responsible for his conduct amounts to “insulting lan-guage.” In order to be considered insulting, the complaint’s language should reach a certain degree of denigration or libel rather than being merely cutting, polemical, or sarcastic.46The
position of the African Commission may perhaps be explained by extralegal or extrajudicial factors. Indeed, until recently
40. Id. para. 12.
41. Monja Joana v. Madagascar, Communication 108/93, African Commis-sion on Human and Peoples’ Rights [Afr. Comm’n H.P.R.], ¶ 11 (Oct. 1996), http://www.chr.up.ac.za/images/files/publications/ahrlr/ahrlr_2000.pdf
42. Rifaat Makkawi v. Sudan, Communication 311/05, African Commis-sion on Human and Peoples’ Rights [Afr. Comm’n H.P.R.], ¶ 258 (Nov. 2010), http://old.achpr.org/english/Session%20Report/48_OS%20report.pdf.
43. EGYPTIANINITIATIVE FORPERSONALRIGHTS ET AL., supra note 37, at 9.
44. Ligue Camerounaise des Droits de l’Homme v. Cameroon, Communica-tion 65/92, African Commission on Human and Peoples’ Rights [Afr. Comm’n
H.P.R.] (Apr. 1997),
http://www.chr.up.ac.za/images/files/publications/ahrlr/ahrlr_2000.pdf. 45. Id. ¶ 13.
46. EUR. COURT OF HUMAN RIGHTS, PRACTICAL GUIDE ON ADMISSIBILITY
some members of the African Commission used to concurrently hold other internal or external executive governmental posi-tions in their respective countries, including minister or am-bassador.47As a result, it would be embarrassing, and possibly
jeopardizing to their domestic careers, for members of the Afri-can Commission (particularly for those holding official func-tions at home) to accept complaints criticizing their own gov-ernments. Furthermore, the fact that certain members function as both the judge and a party in a matter, may affect the inde-pendence of the African Commission and lead to the frequent rejection of complaints using critical language.48Unlike the
Af-rican Commission, the ECtHR held that the complainant’s lan-guage must exceed “the bounds of normal, civil and legitimate criticism” in order to be perceived as insulting or abusive.49
An additional reason for the inadmissibility of most com-plaints concerns the nonexhaustion of domestic remedies. Be-fore approaching the African Commission, it is mandatory that the complainant first pursue all legal and judicial mechanisms available locally to resolve the matter.50 This requirement of
exhausting local remedies constitutes a part of customary in-ternational law and is “based on the generally recognized rules of international (human rights) law”51 that international
hu-man rights bodies are subsidiary to the domestic huhu-man rights courts, giving the latter the privilege to first adjudicate human rights violations.52 This stipulation prevents the international
tribunal from acting as a court of first instance; instead, inter-national tribunals should serve as a body of last resort.53
Ac-cordingly, a complaint would be declared inadmissible by the African Commission if the case was still pending before the domestic tribunal or if the complainant failed to follow appro-priate and available local judicial avenues. In Majuru v
Zimba-bwe, the African Commission dismissed the complaint for non-47. FIDH, supra note 16, at 24.
48. Id.
49. EUR. COURT OFHUMANRIGHTS, supra note 46, at 38.
50. EGYPTIANINITIATIVE FORPERSONALRIGHTS ET AL, supra note 37, at 10–
11.
51. EUR. COURT OFHUMANRIGHTS, supra note 40, at 22.
52. Id.
53. Majuru v Zimbabwe, Communication 308/2005, African Commission on Human and People’s Rights [Afr. Comm’n H.P.R.], ¶ 77 (Nov. 24, 2008), http://www.achpr.org/files/sessions/44th/comunications/308.05/achpr44_308_0 5_eng.pdf.
compliance with the requirement of exhaustion of local reme-dy.54However, to determine the complainant’s compliance with
this requirement, the African Commission focused on the availability, effectiveness, and sufficiency of local remedies. In
Jawara v The Gambia,55 the African Commission stated that,
“A remedy is considered available if the petitioner can pursue it without impediment; it is deemed effective if it offers a prospect of success; and it is found sufficient if it is capable of redressing the complaint.”56 The burden of proof for the existence and
ex-haustion of local remedies weighs on the complainant by virtue of the principle actori incumbit probation. Once the complain-ant meets their burden, it then shifts to the State to demon-strate why remedies were not previously exhausted and how there are remedies available that can be used to solve the com-plaint.57 This is the application of the procedural principle in
excipiendo reus fit actor. Nevertheless, the exhaustion of local
remedies is not an absolute requirement, and there are limita-tions to this criterion. The circumstances under which the ex-haustion of local remedies is not a requirement include: the ousting of jurisdiction of courts;58 unduly prolonged remedies;59
54. Id. ¶ 112.
55. Comm. 147/95–149/96, supra note 25. 56. Id. ¶ 32.
57. EGYPTIANINITIATIVE FORPERSONALRIGHTS ET AL., supra note 37, at 12.
58. Id. at 13 (discussing the concept that the ousting of the court’s jurisdic-tion is, for example, where a State-party has promulgated laws nullifying the jurisdiction of ordinary courts). See also Civil Liberties Organisation v. Nige-ria, Communication 151/96, African Commission on Human and Peoples’ Rights [Afr. Comm’n H.P.R.], ¶ 14 (1999), http://www.achpr.org/files/sessions/26th/comunications/151.96/achpr26_151_9 6_eng.pdf. In Civil Liberties Org v Nigeria, the African Commission upheld Nigeria’s military government by adopting decrees ousting the jurisdiction of ordinary courts that had rendered the local remedies nonexistent, ineffective, or illegal. Id.
59. This situation occurs when there is an undue and unjustifiable prolon-gation of the case in the domestic courts. In Odjouoriby Cossi Paul v. Benin, the African Commission declared the complaint admissible after concluding that there was an undue delay of the Complainant’s case before the national courts:
The complaint filed the appeal against the judgment of the court of first instance is dated 19thSeptember 1995 and the Commission was
seized of the case on 8thApril 1997, that is 20 months after the filing
ac-the element of fear;60and the situation of serious human rights
violations.61
Moreover, a complaint can be declared inadmissible if it is filed at an unreasonable time after local remedies were ex-hausted. Previously, the African Commission seemed to be “in-dulgent” in interpreting the “reasonable time” requirement.62
Some complaints were declared admissible even after being dormant up to sixteen years following the exhaustion of domes-tic remedies.63 However, after drawing inspiration from the
IACtHR and ECtHR, the African Commission became more stringent in interpreting the “reasonable time” requirement.64
In Michael Majuru v. Zimbabwe, the African Commission held that,
The provisions of other international regional instruments like the European Convention on Human Rights and Funda-mental Freedoms and the Inter-American Convention on Human Rights, are almost similar and state that they . . .
cepted by the Supreme Court that average period ranges between 4 and 5 years.
See Odjouoriby Cossi Paul v. Benin, Communication 199/1997, African
Com-mission on Human and People’s Rights [Afr. Comm’n H.P.R.], ¶ 28 (2004), http://www.achpr.org/files/sessions/35th/comunications/199.97/achpr35_199_9 7_eng.pdf.
60. EGYPTIANINITIATIVE FORPERSONALRIGHTS ET AL., supra note 37, at 14.
(“When the complainant has, out of fear, fled his/her own country where the alleged violation of human rights took place, and he/she could not therefore exhaust domestic remedies.”); see also, e.g., John D. Ouko v. Kenya, Commu-nication 232/99, African Commission on Human and Peoples’ Rights [Afr.
Comm’n H.P.R.], ¶ 31 (2000),
http://www.achpr.org/files/sessions/28th/comunications/232.99/achpr28_232_9 9_eng.pdf. In Ouko v. Kenya, by contrast, the African Commission found that there were elements of fear for the complainant and declared his complaint admissible. Id.
61. In DR Congo v. Burundi, Rwanda and Uganda, the African Commis-sion noted that in the case where the violations of human rights are being perpetrated by the respondent States in the territory of the complainant State, the requirement of local remedies should not exist and the question of their exhaustion cannot therefore arise. See Democratic Republic of Congo/ Burundi, Rwanda, Uganda, Communication 227/1999, African Commission on Human and People’s Rights [Afr. Comm’n H.P.R.], ¶ 63 (2003), http://caselaw.ihrda.org/doc/227.99/view/en/.
62. EGYPTIANINITIATIVE FORPERSONALRIGHTS ET AL, supra note 37, at 15.
63. Id. 64. Id.
may only deal with the matter . . . within a period of six months from the date on which the final decision was taken . . . after this period has elapsed they will no longer entertain the communication.65
In this case, the African Commission declared the complaint inadmissible for being filed twenty-two months after the ex-haustion of local remedies.66Thereby, the African Commission
set the standard for a “reasonable time” period at six months.67
Additionally, complaints will only be admissible if they were not previously settled or pending before other international ju-dicial bodies similar to the African Commission, such as the U.N. Human Rights Committee. Accordingly, in Mpaka-Nsusu
v. Zaire, the African Commission dismissed the complaint
be-cause it had already been referred to the Human Rights Com-mittee based on the violation of the International Covenant on Civil and Political Rights.68 In this case, the African
Commis-sion’s position might have been motivated by the necessity of respecting the non bis in idem principle. Yet, the African Commission can still accept complaints that were discussed by nonjudicial international bodies, such as United Nation’s sub-commission and special rapporteurs.69
Finally, complaints must specially address the violation of rights guaranteed in the African Charter rather than being an unclear statement concerning the general political situation of
65. Majuru v Zimbabwe, Communication 308/2005, African Commission on Human and People’s Rights [Afr. Comm’n H.P.R.], ¶ 108 (2008), http://www.achpr.org/files/sessions/44th/comunications/308.05/achpr44_308_0 5_eng.pdf.
66. Id. ¶ 110.
67. EGYPTIANINITIATIVE FORPERSONALRIGHTS ET AL., supra note 37, at 15.
68. Mpaka-Nsusu Andre Aphonse v. Zaire, Communication 15/1988, Afri-can Commission on Human and People’s Rights [Afr. Comm’n H.P.R.], ¶ 2 (1988),
http://www.achpr.org/files/sessions/5th/comunications/15.88/achpr5_15_88_en g.pdf.
69. EGYPTIANINITIATIVE FORPERSONALRIGHTS ET AL., supra note 37, at 16;
see also Bakweri Land Claims Committee v. Cameroon, Communication
260/2002, African Commission on Human and People’s Rights [Afr. Comm’n
H.P.R.], ¶¶ 49–53 (2004),
http://www.achpr.org/files/sessions/36th/comunications/260.02/achpr36_260_0 2_eng.pdf. In Bakweri Land Claims Committee v. Cameroon, the African Commission declared the complaint admissible despite that the matter was initially discussed by the U.N. Sub-Commission on Prevention of Discrimina-tion and ProtecDiscrimina-tion of Minorities. Id.
the responding State.70 In addition, complaints should not be
based solely on media reports; they must substantiated by oth-er matoth-erial evidence establishing the truth of the facts.71
The procedure before the African Commission is quasi-judicial by nature. Through this quasi-quasi-judicial process, the Af-rican Commission is charged with enforcing the rights guaran-teed in the African Charter72by formulating nonlegally binding
recommendations (as final decisions) to the respondent States.73 This means that State violators of human rights do
not have a legal obligation to comply with the African Commis-sion’s decisions in regards to the complaints lodged against them. The lack of binding decisions of the African Commission, combined with its delay in adjudicating cases,74 has led to the
calling for judicial bodies capable of rendering decisions with binding effects.
2. ACtHPR
As previously mentioned, unlike the European and Inter-American Conventions on Human Rights, the African Charter does not establish a judicial human rights body. However, ow-ing to institutional weaknesses, lack of resources, the nonbind-ing effects of decisions, and the lack of decisional implementa-tion, there was a need to create a more “powerful” continental judicial body to fill the gaps of the African Commission. As a result, the Protocol to the African Charter establishing the AC-tHPR was adopted in 1998,75and entered into force in 2004
af-ter its ratification by fifteen countries.76The ACtHPR was
cre-ated with the clear mission of both complementing and enhanc-ing the protective mandate of the African Commission.77
70. EGYPTIANINITIATIVE FORPERSONALRIGHTS ET AL., supra note 37, at 9.
71. Id. at 10.
72. FIDH, supra note 16, at 26.
73. African Charter, supra note 2, art. 45, para. 1(a).
74. The timeframe for the review of complaints before the African Com-mission varies, but is often too long-ranging. The timeframe often lasts be-tween two and eight years. See Mohamed L. Diakite v. Gabon, No. 73/1992, African Commission on Human and Peoples’ Rights [Afr. Comm’n on H.P.R.] (May 11, 2000), http://corteidh.or.cr/tablas/22425.pdf (rendering a decision on a case in 2000 in which the complaint was brought before the African com-mission in 1992); FIDH, supra note 16, at 26.
75. Id. at 29–30.
76. Protocol to the African Charter, supra note 3, art. 34, para. 3. 77. Id. art. 2.
a. Powers and Jurisdictions
The ACtHPR has the power to adjudicate the compliance of State parties with the provisions of the African Charter and other international and regional human rights instruments du-ly ratified by those countries. Accordingdu-ly, the ACtHPR has advisory, arbitral, and contentious jurisdiction. As an advisory court, the ACtHPR provides its opinions on any matter relating to the protection of human rights or any relevant human rights instruments at the request of State members, AU organs, and African organizations recognized by the AU.78The subject
mat-ter for advisory opinions cannot relate to the request pending before the African Commission; this requirement aims to avoid a conflict of jurisdiction between the African Commission and the ACtHPR.79
Additionally, the ACtHPR is competent to serve as an arbi-tral body, where it can amicably settle cases brought before it.80
The arbitral competence of the ACtHPR resembles a diplomatic function through which the court must use amicable approach-es to reconcile and rapproach-esolve disputapproach-es between the partiapproach-es in con-flict.81 However, the agreement between parties must comply
with the African Charter’s provisions rather than violate the rights guaranteed by these provisions.82
The ACtHPR may also be requested to exercise its conten-tious jurisdiction. Article 3(1) of the Protocol provides that the ACtHPR jurisdiction shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol, and any other relevant Human Rights instrument ratified by the concerned States.83 This
means, in performing its contentious jurisdiction, the ACtHPR has a dual function, consisting of either interpreting or apply-ing the provisions of the African Charter and other relevant human rights instruments.84
Although this dual contentious function can be cumulatively performed, ACtHPR—to the extent that it can adjudicate whether or not the respondent State has efficiently applied a
78. Id. art. 4. 79. Id. 80. Id. art. 9.
81. FIDH, supra note 16, at 52.
82. Protocol to the African Charter, supra note 3, art. 9. 83. Id. art. 3, para. 1.
right guaranteed by the provisions of the African Charter— may also interpret some of these provisions.85 For instance, in
Norbert Zongo and others v. Burkina Faso, a case pertaining to
the assassination of the journalist Norbert Zongo, the ACtHPR interpreted the provisions of the African Charter pertaining to the exhaustion of local remedies and ruled that Burkina Faso had failed to take appropriate action to “ensure that the rights of the Applicants for their cause to be heard by competent
na-tional Courts are respected.”86 The ECtHR and the IACtHR
have also recognized a dual contentious function to interpret and apply human rights provisions.87
b. Standing Rights
According to Article 5 of the Protocol to the African Charter and Rule 33 of the Rules of ACtHPR, the ability to approach the ACtHPR is only held by: the African Commission, State parties to the Protocol, African Intergovernmental Organiza-tions, and exceptional NGOs and individuals from States ac-cepting the Court’s jurisdiction. In other words, NGOs and in-dividuals are denied the right to directly lodge complaints be-fore the ACtHPR.88Instead, they must indirectly approach the
Court by instituting complaints before the African Commission, hoping the latter will forward the matter to the Court. Howev-er, there is no absolute guarantee that in seizing the African Commission, the case will subsequently be referred to the
85. Id.
86. Norbert Zongo, Abdoulaye Nikiema alias Ablasse, Ernest Zongo and Blaise Ilboudo and The Burkinabe Human and People’s Rights Movement v. Burkina Faso, Case No. 013/2011, Decision, African Court on Human and Peoples’ Rights [Afr. Ct. H.P.R.], ¶ 125 (June 21, 2013), http://dev.ihrda.org/fr/doc/013.11/view/; see also African Court on Human and
People’s Rights Issues Judgment in Killing of Investigative Journalist, INT’L
JUST. RESOURCE CTR. (Apr. 8, 2014),
http://www.ijrcenter.org/2014/04/08/african-court-on-human-and-peoples-rights-issues-judgment-in-killing-of-investigative-journalist/.
87. European Convention on Human Rights and Fundamental Freedoms, art. 32, para. 1, Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter European Con-vention]; see also American Convention on Human Rights, art. 62, para. 3, Nov. 22, 1969, 9 I.L.M. 101 [hereinafter American Convention].
88. Protocol to the African Charter, supra note 3, art. 5, para. 3 & art. 34 para. 6; see also AFR. COURT OFHUMAN& PEOPLES’ RIGHTS, RULES OFCOURT,
r. 33, para. 1 (2010), http://en.african-court.org/images/Basic%20Documents/Final_Rules_of_Court_for_Publication_ after_Harmonization_-_Final__English_7_sept_1_.pdf.
Court. The African Commission may try to adjudicate the mat-ter itself and make recommendations to the respondent State. The Commission may refer the case to the Court only when the respondent State fails to comply with the African Commission’s recommendations. This process could take many years before the ACtHPR is actually able to hear the case. However, NGOs and individuals from States that have made a declaration ac-cepting the jurisdiction of the Court for its citizens, can bring cases directly before the ACtHPR. As of March 2015, only five countries have made such a declaration authorizing their citi-zens to directly approach the Court, including Burkina Faso, Ghana, Malawi, Mali, and Tanzania.89 It is worth noting that
the ACtHPR is not the only international judicial human rights body that bars individuals from directly approaching the Court. Individuals and NGOs also lack standing to directly institute complaints before the IACtHR; they are required to lodge com-plaints through the Inter-American Commission of Human Rights.90However, unlike the African and IACtHR, the ECtHR
is the only international judicial human rights body that auto-matically accepts complaints coming directly from individu-als.91
c. Admissibility
According to the Protocol to the African Charter, the ACtHPR should rule on the admissibility of cases based on Article 56 of the African Charter.92 The Protocol also emphasizes that the
ACtHPR may request the opinion of the African Commission when deciding on the admissibility of complaints.93These
inter-judicial interactions reflect the unique relationship between the ACtHPR and the African Commission.
d. Relationship Between the ACtHPR and the African Commis-sion
Article 2 of the Protocol to the African Charter provides that “the Court shall . . . complement the protective mandate of the
89. The African Court on Human and People’s Rights, AFR. UNION,
http://www.au.int/en/organs/cj (last visited Oct. 21, 2015). 90. American Convention, supra note 87, art. 44. 91. European Convention, supra note 87, art. 34.
92. Protocol to the African Charter, supra note 3, art. 6, para. 2. 93. Id. art. 6, para. 1.
African Commission on Human and Peoples’ Rights . . . con-ferred upon it by the African Charter on Human and Peoples’ Rights.”94 The complementary relationship between the
AC-tHPR and the African Commission is demonstrated through the collaboration on the issue of locus standi, where the African Commission serves as the road leading to the Court, particular-ly in the context when offending States do not allow their citi-zens to directly approach the Court. Their collaboration is also reflected in the Court’s advisory jurisdiction where it can re-quest the advisory opinion of the African Commission on
hu-man rights questions.95 Furthermore, both the ACtHPR and
the African Commission work together on the admissibility of cases where the ACtHPR demands the African Commission’s opinion96 or decides not to adjudicate the complaints brought
before it and transfers them to the African Commission for ex-amination.97
In conclusion, unlike the African Commission, the procedure before the ACtHPR is judicial, and the decisions rendered by the Court are legally binding for the offending States. And, ac-cording to Article 30 of the Protocol, the State Parties are re-quired to comply with the Court’s judgment.
3. ACJHR
It may be unclear why there is an ACJHR when the ACtHPR just entered into force in 2004. One may wonder what is wrong with the newly born ACtHPR that necessitates its replacement by a new Court. Before exploring these concerns, it is impera-tive to illustrate the context of the creation of the ACJHR.
In July 2002, the OAU was disbanded and replaced by the AU, which was entitled with the mission of achieving “an inte-grated, prosperous and peaceful Africa, driven by its own citi-zens and representing a dynamic force in [the] global arena.”98
The AU was established on the basis of a Constitutive Act of 2000,99 with a Court of Justice as its judicial organ.100 The
94. Id. art. 2. 95. Id. art. 4.
96. Id. art. 6, para. 1. 97. Id. art. 6, para. 3.
98. AU in a Nutshell, AFR. UNION, http://au.int/en/about/nutshell (last
vis-ited Apr. 13, 2015).
99. Org. of African Unity, Constitutive Act of the African Union, July 11, 2000, OAU Doc. CAB/LEG/23.15 [hereinafter AU Constitutive Act].
Court of Justice was set to be a separate and distinct Court from the ACtHPR mandated to adjudicate the compliance of the AU’s State members with the AU’s treaties and deci-sions.101 Both the Court of Justice and the ACtHPR had
juris-diction to hear human rights complaints—the former had ju-risdiction on human rights cases based on the AU Constitutive Act, and the latter had jurisdiction based on the Protocol to the African Charter.102It soon became obvious that the coexistence
of multiple regional courts with overlapping jurisdictions could lead to a serious risk of conflicting jurisprudence, as the same rules of law might be interpreted differently in different cas-es.103In addition to the potential legal problem, there were also
some practical concerns that maintaining two continental Courts would be challenging due to both insufficient human and financial resources. From this quagmire, there emerged the idea of merging the two Courts into a single Court.104 In
July 2008, the AU’s State members adopted a Protocol105 that
merged the Court of Justice and the ACtHPR into a single Court called the ACJHR. Article 60 of the ACJHR Protocol pro-vides that the Protocol and its Court’s Statute will enter into force thirty days after the ratification of the Protocol by fifteen
member States.106 As of December 2014, only five states—
Libya, Mali, Burkina Faso, Congo-Brazzaville, and Benin—had ratified the ACJHR Protocol.107Beyond the legal and practical
challenges which occasioned the creation of a single and more powerful Court in Africa, another motivation for establishing
100. Id. art. 5, para. 1(d), art. 18. 101. FIDH, supra note 16, at 141. 102. FIDH, supra note 16, at 142.
103. See Nsongurua J. Udombana, Toward the African Court on Human
and Peoples’ Rights: Better Late Than Never, 3 YALEHUM. RTS. & DEV. L.J.
45, 102 (2000).See generally Marc Schulman, Note, The African Court of
Jus-tice and Human Rights: A Beacon of Hope or a Dead-end Odyssey?, INKULKDA
STUDENT J.L. U. WITWATERSRAND, 2013,
http://www.inkundlajournal.org/inkundla/2013-inkundla-2. 104. Id.
105. Protocol on the Statute of the ACJHR, supra note 4. 106. Id. art. 60.
107. List of Countries Which Have Signed, Ratified/Acceded to the Protocol
on the Statute of the African Court of Justice and Human Rights, AFR. UNION
(Mar. 2, 2014),
http://www.au.int/en/sites/default/files/Protocol%20on%20Statute%20of%20th e%20African%20Court%20of%20Justice%20and%20HR_0.pdf.
such a Court seemed to be purely political. Indeed, according to numerous African leaders, it is important to create a continen-tal criminal judicial institution to provide African solutions to African problems rather than having the ICC preoccupied with trying to solve African challenges by using Western standards, perceptions, and perspectives.108 In other words, some African
Heads of States (even if unfairly) perceive the ICC, whose com-petence consists of judging international crimes, as a judicial institution that principally targets African people (including political leaders) accused of perpetrating international crimes, such as crimes against humanity, genocide, war crimes, and crimes of aggression.109 In response, for example, the AU
adopted a resolution preventing its members from cooperating with the ICC in the arrest and transfer110 of Omar Al-Bechir,
President of Sudan111to the ICC.
108. Murigi Macharia, The Establishment of the African Court of Justice
and Human Rights is Unstoppable, Says President Kenyatta as Kenya Com-mits Dollars One Million ($1 Million) to the New Judicial Institution,
PRESIDENT.GO.KE (Jan. 31, 2015),
http://web.archive.org/web/20150405175158/http://www.president.go.ke/the-
establishment-of-the-african-court-of-justice-and-human-rights-is- unstoppable-says-president-kenyatta-as-kenya-commits-dollars-one-million-1-million-to-the-new-judicial-institution/.
109. Since the establishment of the ICC, all twenty-two cases brought be-fore it concern the nationals of the African countries. Some of these cases were referred to the ICC by States parties to the Rome Statute, such as Uganda, the DRC, the Central African Republic, and Mali. Others were re-ferred to the ICC by the Security Council regarding the situation in Sudan, and the situation in Libya, which are both non-States parties to the Rome Statute. And some others cases were initiated proprio motu by the ICC itself (concerning particularly the situations in Kenya and Ivory Coast). See
Situa-tions and Cases, INT’L CRIM. CT.,
http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20and%20 cases.aspx (last visited Apr. 14, 2015).
110. Katherine Iliopoulos, The African Union and the ICC, CRIMES OFWAR,
http://www.crimesofwar.org/commentary/the-african-union-and-the-icc/ (last visited Apr.14, 2015).
111. Prosecutor v. Bashir, Case ICC-02/05-01/09, Warrant of Arrest (Mar. 9, 2009), http://www.icc-cpi.int/iccdocs/doc/doc535163.pdf. Omar Al-Bashir is being prosecuted for war crimes, genocide, and crimes against humanity in connection with situations occurring in Darfur from 2003 to 2008.
a. Jurisdictions of the ACJHR
The ACJHR has competence ratione materiae of the ACtHPR, the Court of Justice, and the international criminal tribunal.112
In other words, as a contentious jurisdiction, the ACJHR is not only empowered to adjudicate the compliance of its States members with both the human rights provisions (based on the African Charter) and the AU’s Constitutive Act and treaties, but also to judge the State-members’ citizens based on interna-tional human rights instruments.113Accordingly, the Draft
Pro-tocol amending the ProPro-tocol on the Statute of the ACJHR pro-vides that the ACJHR is divided into three Sections: a General Affairs Section, a Human Rights Section, and an International Criminal Law Section.114The General Affairs Section is
compe-tent to adjudicate all cases, except those “concerning human and/or peoples’ rights issues,” which are saved for the Human Rights Section; the International Criminal Law Section is com-petent to hear cases relating to international crimes.115 Each
112. Olufemi Elias, Introductory Note to Protocol on the Statute of the ACJHR, supra note 4, at 314.
113. Article 28 of the Protocol on the Statute of the ACJHR provides: The Court shall have jurisdiction over all cases and all legal disputes submitted to it in accordance with the present Statute which relate to: a) The interpretation and application of the Constitutive Act; b) The interpretation, application or validity of other Union Treaties and all subsidiary legal instruments adopted within the framework of the Union or the Organization of African Unity; c) The interpreta-tion and the applicainterpreta-tion of the African Charter, the Charter on the Rights and Welfare of the Child, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, or any other legal instrument relating to human rights, ratified by the States Parties concerned; d) Any question of international law; e) All acts, decisions, regulations and directives of the organs of the Union; f) All matters specifically provided for in any other agreements that States Parties may conclude among themselves, or with the Union and which confer jurisdiction on the Court; g) The existence of any fact which, if established, would constitute a breach of an obligation owed to a State Party or to the Union; h) The nature or extent of the reparation to be made for the breach of an international obligation. Protocol on the Statute of the ACJHR, supra note 4, art. 28.
114. Draft Protocol Amending ACJHR Protocol, supra note 4, annex art. 6, para. 1, at 8 (amending art. 16) (“The Court shall have three Sections: a Gen-eral Affairs Section, a Human Rights Section, and an International Criminal Law Section.”).
Section of the ACJHR has its own appointed judges116and may
refer a case brought before it to the Full Court (all sections re-unified) for consideration, if necessary.117 Important to note is
that the establishment of a permanent, regional, and criminal judicial body in Africa is revolutionary within the African jus-tice system, even if the primordial intention of this innovation might have been to avoid the humiliation of seeing African po-litical leaders being prosecuted before the ICC. An abrupt rup-ture with the ICC by African countries would have been per-ceived as a consecration of impunity for international crimes due to the vacuum that would have been generated for prose-cuting international crimes in Africa. The ACJHR’s Interna-tional Criminal Law Section (with its three Chambers: the Pre-Trial, the Pre-Trial, and the Appellate Chambers118) was therefore
established to fill the eventual gaps. Another innovation relates to the impressive list of international crimes that the ACJHR’s International Criminal Law Section is competent to adjudicate. Unlike the ICC, which only tries cases of genocide, crimes against humanity, war crimes, and crimes of aggression, the International Criminal Law Section may additionally judge cases of an unconstitutional change of government, piracy, ter-rorism, mercenarism, corruption, money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes, and illicit exploitation of natural resources.119In other
words, the International Criminal Law Section “has jurisdic-tion over many crimes, of which some are not yet fixed in the international criminal firmament, such as unconstitutional change of government or illicit exploitation of natural re-sources.”120In light of this extended jurisdiction, a more
practi-cal question that can also be asked is: Will the ACJHR have a consequent budget and staff to properly perform the criminal law function in addition to human rights and other func-tions?121 This question does not require an immediate answer,
116. Id. annex art. 6, para. 3, at 8 (amending art. 6). 117. Id. annex arts. 8 & 9, at 9 (amending arts. 18, 19). 118. Id. annex art. 6, para. 2, at 8 (amending art. 16). 119. Id. annex art. 14, para. 1, at 13 (amending art. 28A).
120. Max Du Plessis, Implication of the AU Decision to Give the African
Court Jurisdiction over International Crimes, INST.FORSECURITYSTUD., June
2012, at 7, www.issafrica.org/uploads/Paper235-AfricaCourt.pdf. 121. Id. at 5.
given that the Court itself is neither operational nor has its budget been voted.
Even though the Court is not yet officially operational, the ACJHR can issue advisory opinions over legal questions re-quested by the AU’s organs, including the Assembly, the Par-liament, the Executive Council, the Peace and Security Coun-cil, the Economic, Social and Cultural CounCoun-cil, and the finan-cial institutions (e.g., the African Investment Bank, the African Monetary Fund, and the African Central Bank).122The request
for an advisory opinion must clearly mention the subject mat-ter and must not be related to a pending application before the African Commission or the African Committee of Experts.123
This condition intends to limit situations of “jurisdictional over-lap and to prevent cases where contentious complaints might be disguised and submitted as advisory opinions.”124
Finally, in terms of the competence ratione personae, the ACJHR has jurisdiction over both juristic and natural persons. The ACJHR is empowered to try juristic persons, particularly State members for: their human rights violations committed against their own populations or other States’ populations and their noncompliance with the AU’s Constitutive Act and trea-ties.125 The ACJHR can also adjudicate cases concerning
non-State juristic persons, such as corporations, for their complicity or participation in the commission of international crimes.126In
addition to juristic persons, the ACJHR can judge natural per-sons for their involvement in committing international crimes. These natural persons may include the Heads of States or gov-ernments, government ministers or officials, chiefs of armies, and leaders or members of rebel groups for their individual participation in the violation of international human rights in-struments.127 The dual competence ratione personae of the
ACJHR is very innovative for an international or regional
judi-122. Protocol on the Statute of the ACJHR, supra note 4, art. 53, para. 1. 123. Id.
124. Dan Juma, Lost (or Found) in Transition? The Anatomy of the New
African Court of Justice and Human Rights, 13 Y.B. U.N. L. (Max Planck
Inst.) 267, 300 (2009), www.mpil.de/files/pdf2/mpunyb_08_jumaii.pdf. 125. Protocol on the Statute of the ACJHR, supra note 4, art. 28, para. 1. 126. Draft Protocol Amending the ACJHR Protocol, supra note 4, annex art. 22, at 31 (amending art. 46C).
127. Mbori Otieno, The Merged African Court of Justice and Human Rights (ACJ&HR) as a Better Criminal Justice System than the ICC, at 6 (June 3, 2014) (unpublished manuscript), http://ssrn.com/abstract=2445344.
cial body. Most international judicial bodies are competent to try the misconduct of either States or individuals, not both. For instance, the International Court of Justice (ICJ), the ECtHR, the IACtHR, and the ACtHR are only competent to hear cases relating to the misconduct of States against international hu-man rights instruments and/or international law. Whereas, the ICC and the International Tribunals for ex-Yugoslavia and Rwanda are solely competent over individuals’ misconduct against international human rights laws.
b. Applicable Laws and Standing
In carrying out its functions, the ACJHR is obligated to apply the AU’s Constitutive Act, the African Charter, other relevant regional human rights instruments, the international treaties ratified by the concerned States, and the international customs and general principles of law. Entities eligible to submit cases to the ACJHR consist of: (1) State Parties; (2) the AU’s Organs (including the Assembly, Parliament, Peace and Security Council, and other AU institutions); (3) AU-staff members on dispute appeals based on the Staff Rules and Regulations of the Union; (4) the Office of the Prosecutor of the ACJHR; (5) the African Commission; (6) the African Committee of Experts on the Rights and Welfare of the Child; (7) African
Intergovern-mental Organizations; (8) African NHRIs; and (9)
NGOs/individuals from exceptional States accepting the Court’s jurisdiction.128 Like the ACtHPR, the ACJHR is not
open to nonmembers of the AU or AU-State members that have not ratified the Protocol of the Court.129Two additional
obser-vations can be made about the entities eligible to approach the Court. First, there is a recognition of locus standi for two new entities, namely the African Committee of Experts on the Rights and Welfare of the Child, and the African NHRIs, which are the domestic human rights institutions established by States to promote and protect human rights at the national level.130 Second, NGOs and individuals are once again denied
the possibility to directly institute complaints before the
128. Protocol on the Statute of the ACJHR, supra note 4, arts. 29, 30. 129. Id. art. 29, para. 2.
130. Resolution on Granting Observer [or “Affilliate”] Status to National
Human Rights Institutions in Africa, U. MINN. HUM. RHTS LIBR. (1998),
ACJHR, but they can indirectly lodge complaints to the Court through the African Commission. In addition to the African Commission, NGOs and individuals may currently use their NHRIs as an alternative channel to reach the Court. However, this alternative would depend on how the scope of competence of the NHRIs is defined by the respective authorizing domestic legislation. The ACJHR can also use its discretion by allowing some NGOs and individuals to directly seize it, particularly those residing in States that have formally recognized the ju-risdiction of the Court in hearing cases from their nationals.
c. Admissibility
The admissibility of cases before the ACJHR depends on the subject matters of complaints. The rules differ depending on whether the complaints fall under the jurisdiction of the Gen-eral Affairs Section, Human Rights Section, or the Internation-al CriminInternation-al Law Section.
In regards to cases handled by the General Affairs Section, the admissibility of complaints is regulated by Article 33 of the Protocol on the Statute of the ACJHR.131To be admissible, the
complaint must indicate the subject of the dispute, the applica-ble law for the dispute, and the jurisdiction competent to hear the case.132Once the complaint is lodged, the Registrar will
in-form the State concerned by the complaint or dispute, all States members, and, if necessary, the organs of the Union whose decisions are in dispute.133 Each party concerned by the
dispute will have the possibility to intervene and make com-ments on the complaints.134
Article 34 of the Protocol on the Statute of the ACJHR deal-ing with the proceeddeal-ings before the Human Rights Section is laconic on the rules regulating the admissibility of complaints lodged before this Human Rights Section.135 The provisions of
131. Protocol on the Statute of the ACJHR, supra note 4, art. 33. 132. Id. art. 33, para. 1.
133. Id. art. 33, para. 3. 134. Id. arts. 50, 51.
135. The Protocol on the Statute of the ACJHR provides:
Cases brought before the Court relating to an alleged violation of a human or peoples’ right shall be submitted by a written application to the Registrar. The application shall indicate the right[](s) alleged to have been violated, and, insofar as it is possible, the provision or provisions of the African Charter on Human and Peoples’ Rights, the
the Protocol on the Statute of the ACJHR is ambiguous on the question as to what criteria needs to be met in order for a com-plaint to be admissible before the ACJHR’s Human Rights Sec-tion. In light of these provisions, it appears that the complaint before the Human Rights Section should only mention the vio-lated right(s) and the illegality of this act(s) vis-à-vis the hu-man rights instruments ratified by the concerned State.136But,
one may also wonder whether the complaint would not be de-clared inadmissible by the ACJHR’s Human Rights Section if it is filed anonymously or at an unreasonable time or before ex-hausting local remedies.
Nevertheless, concerning the complaints under the jurisdic-tion of the Internajurisdic-tional Criminal Law Secjurisdic-tion, the rule of ad-missibility of cases is set up by Article 46E, 46E bis, and 46F of
the Draft Protocol amending the ACJHR Protocol.137 These
provisions established some preconditions for a case to be de-clared admissible. A State party willing to seize the Interna-tional Criminal Law Section should have previously accepted the jurisdiction of the International Criminal Law Section and agreed that any criminal conduct committed in its territory and/or by its nationals is to be prosecuted.138 Additionally, the
criminal conduct, which is the subject matter of the complaints, should have been committed after the entry into force of the Protocol on the Statute of the ACJHR.139As of March 2015, the
ACJHR is not yet operational. Acting as a complementary ju-risdiction to the domestic and subregional courts, the Interna-tional Criminal Law Section will reject the complaints on cases that were already adjudicated at the national or regional lev-el140by virtue of the principle of no bis in idem.141Furthermore,
Charter on the Rights and Welfare of the Child, Protocol to the Afri-can Charter on Human and Peoples’ Rights on the Rights of Women in Africa or any other relevant human rights instrument, ratified by the State concerned, on which it is based. 2. The Registrar shall forthwith give notice of the application to all parties concerned, as well as the Chairperson of the Commission.
Id. art. 34.
136. Id.
137. Draft Protocol Amending ACJHR Protocol, supra note 4, annex art. 22, at 31–32 (amending arts. 46E, 46E bis & 46F).
138. Id. at 32 (amending art. 46E bis).
139. Id. (amending art. 46E, para. 1, as amended). 140. Id. at 33 (amending art. 46H, para. 2(c)). 141. Id. at 34 (amending art. 46I)
